The Independence of Judiciary: Bangladesh Perspective

The Independence of Judiciary: Bangladesh Perspective

Introduction

The doctrine of Independence of judiciary lies at the heart of our democratic system of government as well as in any modern constitutional State. The doctrine has its origin in the theory of separation of powers, whereby the Executive, Legislature and Judiciary form three separate branches of government, which, in particular, constitute a system of mutual checks and balances aimed at preventing abuses of power to the detriment of a free society. This independence means that both the Judiciary as an institution and also the individual judges deciding particular cases must be able to exercise their professional responsibilities without being influenced by the Executive, the Legislature or any other inappropriate sources.

As long ago as Montesquieu’s The Spirit of Laws it was said there was no ‘liberty’ if the Legislature and Executive powers were not separate from the power of judging. Otherwise, Montesquieu said ‘the judge might behave with all the violence of an oppressor’[1].

Independence of judiciary is a basic feature of the constitution of the People’s Republic of Bangladesh since Article 22 of the Constitution requires separation of judiciary from the executive. The higher judiciary cannot perform its solemn duties unless its independence is guaranteed and protected.

Concept of independence or separation of judiciary

Independence of judiciary means a fair and neutral judicial system of a country, which can afford to take its decisions without any interference of executive or legislative branch of government. The concept of judicial independence as recent international efforts to this field suggests, comprises following four meaning of judicial independence:

(i) Substantive Independence of the Judges: It referred to as functional or decisional independence meaning the independence of judges to arrive at their decisions without submitting to any inside or outside pressure;

(ii) Personal independence: That means the judges are not dependent on government in any way in which might influence them in reaching at decisions in particular cases;

(iii) Collective Independence: That means institutional administrative and financial independence of the judiciary as a whole vis-à-vis other branches of the government namely the executive and the legislative;

(iv) Internal Independence: That means independence of judges from their judicial superiors and colleagues. It refers to, in other words, independence of a judges or a judicial officer from any kind of order, indication or pressure from his judicial superiors and colleagues in deciding cases.

Independence of judiciary depends on some certain conditions like mode of appointment of the judges, security of their tenure in the office and adequate remuneration and privileges. Satisfactory implementation of these conditions enables the judiciary to perform its due role in the society thus inviting public confidence in it.

Independence of Judiciary: Bangladesh Perspective

However in our country the actual scenario is completely different as our judiciary system is heavily influenced by the executive or legislative bodies. In practice, all the judges in the lower courts or Honorable Justices in the Supreme Court are appointed on political foundation and therefore those politically appointed judges always fall short in establishing justice when political questions arises due to their own personal interest.

On the other hand recent BBC news reveals that Pakistan’s Supreme Court has found Prime Minister Yousuf Raza Gilani guilty in a contempt of court case. Therefore it proves that Pakistan’s judicial system is so powerful and independent where the judges are not dependent on government in any way whereas in our Bangladesh it is next to impossible.

Appointment of high court justice

The status of the Higher Judiciary and its financial independence has always been respected in all the regimes after the restoration of democracy in Bangladesh in 1991. The job of the higher judiciary judges are secured here, they are immune from “punishment transfer” because of the unitary structure of the Higher Judiciary and their termination could in no way be dictated by the executive. They are not accountable to anyone except to a body comprising the most senior three judges and there is almost no scope for breaking seniority, rewarding with promotion or making any variation in salary or amenities once they are confirmed as a high court judge.

A careful observation would however reveal that it is particularly the post creation, appointment and confirmation in Higher Judiciary where the law and practice in Bangladesh are weak and inadequate in ensuring independence there.

First: whereas In India and Pakistan, the decision to increase number of judges in the Higher Judiciary is a matter of parliamentary scrutiny and informed debate, in Bangladesh in the name of President it is the Law Ministry which decides whether and if so how many new judges would be recruited.

Second: In the absence of constitutional obligation of the president to consult with the Chief Justice in appointing other judges of the Supreme Court, “conventional” consultation is limited to the list of candidates chosen by the executives and President being also appointed by the Government of day would also be confined by the executives’ decision.

Third: There is no legal obligation for i) confirming services of judges after their two years experiences as additional judge or ii) elevating senior most judges to the Appellate Division or iii) appointing the most senior judge as the Chief Justice.

Influence may originate in the structure of the government system where parts or all of the judiciary are integrated into another body (in the case of Bangladesh: the executive). For example, in Bangladesh the president in consultation with the Supreme Court according to the constitution, appoints judicial officers other circumstances include functional aspects of the judicial system when the administration of justice is in some way, affected by executive orders or actions Executive abuse of this constitutional order result in biased appointment of judges, and other officers of the judicial cadre, favoring individuals who support the governing political party.

As a result, politically advantageous appointments have increased over the last regimes. For example: among the 45 judges recruited by BNP led alliance, more than one-third was allegedly affiliated with the ruling alliance. Similarly, at least one-third of present AL government’s new appointees were involved in Awami League politics.

Appointment of a good number of partisan and less competent judges in the court has had an adverse effect on the quality of administration of justice and on its independence, as those judges are often more succumbing to political influence and corruption. Although Higher Judiciary is still respected and honored by people, there are growing allegation of unfair practice in disposing of bail petition, delay in disposing of cases, politically bias decisions and erosion in supervising subordinate judiciary etc.

Way out

The question of separation of the judiciary from the executive organ of the state is not new for our judicial system. We must seek the reasons why this very important organ of the state has so far not been given the shape as it has become mandatory to separate the executives for having an independent judicial system. Therefore some common points are discussed below:

  1. We should have at least an average knowledge of our present judicial system. Due to lack of consciousness people’s have no strong movement for this wants.
  2. Civil society now days play a very important role for any positive change or form of a country. The civil society of Bangladesh is not so strong that’s why they also failed to compel the government to separate the judiciary from the executive.
  3. Any kind of meaningful changed, political will is mandatory because our democratic polity deals by various political parties. And Government formed by citizen’s mandate with their representatives. So, if the political parties (both government and opposition) have no interest to separate the judiciary from the executive it would be impossible. Though most of the political parties have commitment to separation of judiciary but after formation of government they technically avoid the matters.
  4. Executive Dominated Judiciary: Appointments of persons in the judicial service or as magistrates exercising judicial functions shall be made by the President in accordance with rules made by him in that behalf. It is noticeable in this article that the President with exercising this power is not required to consult the Chief Justice of Bangladesh. We know that the President cannot exercise his powers whatever, without the advice of the Prime Minister, accept of course his power to appoint the Prime Minister. This is how the executive organ of our state is controlling the judiciary and hence constitutional amendment is necessary to separate executive from taking part in the appointment of judges in higher judiciary and to this effect and independent judicial commission should be introduced where judged shall be appointed only on the basis of their experience and merit and not on the basis of any political whims.
  1. It is also alarming news that maximum lawmakers are concerned with any of the major parties of the country. So it is a matter of great tension whether public will get justice or not that is why, first of all politics among the judiciary must be banned.

Conclusion

Though separation of judiciary has been made but appointment of High Court Judges with political interference shall keep the separation of judiciary in pen and paper which is true and unlawful but to some extent we the general people are responsible for this situation. However, It is alarming that political interference in the judiciary system is one of the main reason for our political instability. If we are aware of our rights as a responsible citizen of the country then we can change and establish an independence judiciary system without having any political interference.

Reference

1) Rahman, Mizanur. (2000). Governance and Judiciary. Governance: South Asian

Perspective (Eds. Hye, Hasnat Abdul). Dhaka: University Press Ltd.

2) Bari, M. Ershadul.( 1993). The Dhaka University Studies. Part. F, IV; 1: 2.

3)BBC News Asia, 26 April 2012 Pakistani PM Gilani guilty of contempt but spared jail .-Retrieved from

http://www.bbc.co.uk/news/world-asia-17848796

4) Rahman, S.M. Matiur. 19 January 2004. The Problems of Separation of Judiciary from the Executive.

Retrieved from http://www.thedailystar.net. /law/2004/09/04/.

5) Hossain ,(n.d) Separation of Judiciary and Judicial Independence in Bangladesh. Retrieved from unpan020065.pdf

6) Barnett, H. Constitutional and Administrative Law, Eighth Edition

7) Islam , M. Constitutional Law of Bangladesh (3rd Edition)

[1] Constitutional and Administrative Law, Eighth Edition by Hilaire Barnett

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